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Protecting and Commercializing Intellectual Property William A. McComas, Esquire Washington, D.C. June 16, 2009 “One of the tests of leadership is the ability to recognize a problem before it becomes an emergency.” Arnold Glasgow

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protecting and commercializing intellectual property

Protecting and Commercializing Intellectual Property

William A. McComas, Esquire

Washington, D.C.

June 16, 2009

slide2
“One of the tests of leadership is the ability to recognize a problem before it becomes an emergency.”

Arnold Glasgow

“I don’t know about technology and I don’t know about finance and accounting.”

Bernard J. Ebbers, Former CEO of WorldCom, at his trial

types of intellectual property
Types of Intellectual Property
  • Patents
  • Copyrights
  • Trademarks
  • Trade Secrets
patents
Patents
  • Subject Matter
    • Utility (process, machine, manufacturer, composition)
    • Design (original or amended design)
    • Plant
  • Utility Patent Requirements
    • Novel (not if already patented or invented; not filed within one year of sale)
    • Non-obvious to one reasonably skilled in the act
  • Rights
    • Exclude others from using, making, having made, offering for sale, selling, importing
  • Term
    • 14-20 years since exceptions
  • Obtained
    • Upon Issue by USPTO
copyrights
Copyrights
  • Subject Matter
    • Books, software, music movies
  • Requirements
    • Original work of authorship in fixed medium of expressions (not released)
  • Rights
    • Exclusive right
    • Reproduce
    • Prepare derivatives
    • Distribute
    • Perform
    • Display
    • Moral Rights (attribution)
  • Duration – Generally life of author plus 50 years
  • Obtained
    • Common law immediately
    • Federal protection by filing with Library of Congress
trade secrets
Trade Secrets
  • Subject Matter
    • Formula, designs, software, etc.
  • Requirements
    • Economic value to secrecy
    • Secret generally
    • Reasonable efforts to keep secret
  • Rights
    • Right to exclude (if no exception) and license
  • Duration
    • For as long as it remains secret
  • Obtained
    • Statutory, contract and common law
trademarks
Trademarks
  • Subject Matter
    • (Word, name, symbol, etc.) that identifies the source of goods and services
  • Requirements
    • No one else is using it previously and not confusingly similar to others
  • Rights
    • Exclusive Right to use mark in a limited scope unless famous mark (may be broader)
  • Term
    • Indefinite so long as you renew
  • Obtained
    • Common law (immediately limited in scope)
    • Federally when filed and granted by the USPTO
ownership
Ownership
  • Employer
    • When employee working within scope of employment
  • Employee
    • When outside scope of employment
  • Independent Contractor
    • Unless written agreement to the contrary
  • Employee v. Independent Contractor
    • Varies from jurisdiction to jurisdiction
    • Supreme Court – multi-factor test
commercializing
Commercializing
  • Assignment – Full Legal Title
  • License
    • Scope of license
    • Perpetual, exclusive, modifiable
    • Restrictions
    • Royalties
vehicles to commercial
Vehicles to Commercial
  • Creation
    • Individuals
    • Companies
    • Contract
    • Sponsored Research
  • Commercialization
    • Solo or form entity
    • Create joint ventures
  • Identify Shortcomings to Effectively Commercialize
    • Finance
    • Know-how
    • Market